Are we at war?

Matthew Hoy
By Matthew Hoy on June 13, 2007

That's really the big question. That's the divide that we have in the nation's political and legal landscape. It's the difference between Rudy Giuliani and John Edwards. It's the difference between the bases of the GOP and Democrat parties.

And it's an issue that's dividing the judiciary. You've got judges who say President Bush can't designate groups (like, say al Qaeda) as terrorist organization. You've got judges who say the executive branch can't surveil terrorist communications.

And then yesterday, you had a federal appeals court, in a 2-1 decision, rule that al Qaeda terrorists who manage to fraudulently acquire visas allowing them into the U.S. to commit acts of terrorism have all the rights of U.S. citizens.

I may have gotten some of the wording wrong in that last paragraph, but I got the import right.

After reading a lot of commentary on this case, a couple of things jump out. First, the continued scare tactics of the ACLU types about the destruction of civil liberties is beginning to ring hollow.

“This is a landmark victory for the rule of law and a defeat for unchecked executive power,” al-Marri's lawyer, Jonathan Hafetz, said in a statement. “It affirms the basic constitutional rights of all individuals – citizens and immigrants – in the United States.”

They continue to warn about President Bush using the Military Commistions Act and the Authorization for the Use of Military Force as tools to silence critics. Yet, Al Marri is the only legal resident on U.S. soil who has been declared an enemy combatant. Last I checked, though he has always sounded very fearful, New York Times columnist Paul Krugman still hasn't been moved to Gitmo.

The coverage of this ruling, especially the leftist editorials lauding it as a rebuke to the Bush administration, has glossed over the dissent in the case, including some key facts.

Furthermore, setting aside the amorphous distinction between an “enemy combatant” and an “enemy belligerent,” there is little doubt from the evidence that al-Marri was present in the United States to aid and further the hostile and subversive activities of the organization responsible for the terrorist attacks that occurred on September 11, 2001.

I therefore vote to affirm the district court. [emphasis added]

The left would have us try this terrorist in open court and allow all sorts of discovery that would include information on how we caught Al Marri. Information that would be shared with his lawyers and would undoubtedly make it back to Al Qaeda so they could do better getting their sleeper agents in place next time. I know some of you might say that we can trust the lawyers -- but I don't think so.

You can read a piece by Andrew C. McCarthy of the Foundation for Defense of Democracies on the ruling here. National Review has an editorial on the ruling here. For an interesting discussion on the case, read the comments on these posts by Orin Kerr over at the Volokh Conspiracy.

McCarthy's piece is especially good.

Yesterday’s ruling should remind us of why such talk is so foolish. Let’s ignore for the moment that Gimo has produced vital intelligence that has thwarted terrorist plans and helped our military and intelligence community map al Qaeda. If, for no better reason than to appease war critics, Gitmo is closed and the Qaeda detainees are brought into the United States, yesterday’s decision is added reason to fear the federal courts will hold that all alien unlawful enemy combatants, by virtue of their lawful presence in the United States, are entitled to the full array of American constitutional rights, including trial in the criminal justice system — and, as discussed above — Congress would be powerless to stop them.

Think of what that would mean. Many of the remaining 380 combatants are almost certainly being held based on intelligence (from U.S. sources or foreign services) that cannot be disclosed in public proceedings without endangering national and military security. Others, no doubt, are being held for battlefield acts that could not be proved absent pulling U.S. troops out of combat so they could testify (as if they had been agents painstakingly conducting a criminal investigation rather than soldiers engaged in life-and-death hostilities). If these combatants cannot be tried, the courts would likely order them deported or released outright. In either event, they could then rejoin the jihad — precisely the eventuality the laws of war are intended to prevent.

For the arguments put forth by the other side, be sure to read the comments subsequent to Kerr's posts.

If we get to the point where we have to deport these terrorists, what exactly is the law on that process? I mean, can we take them in a boat to just outside U.S. territorial waters -- in the Bering Sea -- and just toss them in the water? Or if we have to fly them, can we do the same once we've exited U.S. airspace -- at 30,000 feet ... without a parachute?

Because if we could get a court to approve that kind of deportation, then maybe I'd be satisfied that the judiciary understands that we live in a post-9/11 world.

On a related note: I haven't seen the Democrat presidential candidates queried on their reactions to this ruling. That's an important question that needs to be asked, especially since all of them want Gitmo closed. Do Democrats want public trials for hundreds of terrorists that would necessarily expose our intelligence capabilities and assets along with those of our allies?

0 comments on “Are we at war?”

  1. This will be overturned on appeal, either by the entire court, or the SCOTUS. Judicial overreach by unelected "rulers" continues unabated. Yawn.


To be clear, it's still a 1A violation even as they supposedly intended it. But their rush to pass it made it encompass all sorts of stuff.

The judge should not take them at their word that they will "fix" it. The judge should issue the preliminary injunction we requested.

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